4 February 2013

04 February 2013

Writing in The Washington Post under the title, “What the Court Got Wrong About Recess Appointments,” Sally Katzen talks about how a recent decision by “the U.S. Court of Appeals for the District of Columbia Circuit dramatically limited the president’s ability to fill vacancies in government….I believe last month’s decision…will make it even more difficult for our leaders to carry out their constitutional obligations….”

Continues Ms. Katzen:

“The D.C. Circuit concluded that the Framers did not intend for the Constitution’s recess appointments clause to be used—as presidents have for more than a century—to fill existing vacancies in the long breaks that occur during a session, as opposed to breaks between sessions.

“The fundamental principle underlying the recess appointments clause is that the president must be able to fulfill his constitutional duty to ‘take care that the laws be faithfully executed,’ even when the Senate is unable to advise and consent to his appointments. In the early years of the republic, when…[senators] returned home at the end of each session, the recess appointments clause ensured that the president could keep the government running during the six to nine months before the next session.

“In modern times…the sessions have been extended to accommodate the long breaks within them. But now, even when the senators are present, they are often unable to discharge their responsibilities because of a legislative invention unforeseen by the Founders: the use of [the filibuster] employed by a minority to prevent or delay a vote by the majority.

“The filibuster did not exist in 1789. It was…rarely [used] to block confirmation of executive-branch personnel. Today, however, the filibuster is applied to virtually all Senate business, including the confirmation of executive-branch nominees.

“As a result, critical executive-branch positions remain vacant while qualified nominees wait months—or years—for an up-or-down vote. Meanwhile, ‘acting’ officials are left…to manage and implement essential national functions without the democratic legitimacy of a presidential nomination. This is exactly what the recess appointments clause was meant to prevent. As a 1905 Senate Judiciary Committee Report stated: The clause’s ‘sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof.’

“The increase in intrasession recess appointments fairly tracks the increased use of the filibuster, which makes it surprising that the D.C. Circuit did not…define the situation for what it is: a conflict between the legislature and the president. The use (or abuse) of a procedural device created by the legislature has been met by the expanded use of a constitutional power by the president. This conflict should be resolved by the political branches. At the very least, the courts should not enter the fray to pass on one piece of the dispute without regard to the other pieces of the mosaic.”*

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The Power Struggle between the Legislative and Executive branches of government—the Filibuster vs the Recess Appointments—allows room for some thoughts about different ways that we Americans look at things. In a comment responding to Ms. Katzen’s essay, one reader of The Washington Post, someone identifying himself as “RomeoHotel” wrote:

“…Before I even knew what my politics would be…I noticed this difference between…‘liberals’ and…‘conservatives’: The liberals put their faith in leaders; the conservatives put their faith in systems. That is, conservatives were far more likely to feel that a good system could make up for a bad leader while liberals felt that a good leader could make up for a bad system….”†

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Mr. RomeoHotel’s Comment presents an interesting observation.

Some binary distinctions such as this one (Left/Right; Conservative/Liberal; Democratic/Republican) seem to fuel our partisan divide. Otherwise—other than such political distinctions—we Americans get along with each other fairly well. In our daily interactions, we generally experience not a great deal of conflict or confrontation. Religious differences hardly divide us. School rivalries, reflected in sporting events and academic competitions, provide opportunities for acting out enthusiasm more than representing substantive differences. And unlike much of the rest of the world, we tend not to fight even about major sporting events.‡

Only in the political arena do we act out a partisan, ideological divide with a no-holds-barred vigor.

Given the severity of the ideological divide, that has driven government nearly to a halt, and led key political leaders to work more for partisan obstruction than for our united advancement, the more we can learn about the nature of the divide and the causes of our differences, the better.

Any observations that lead toward recognizing these distinctions, to help us communicate across the divide, serve our common purposes. Mr. RomeoHotel’s observation thus merits wider distribution, additional thought, and more study.